Parsing Boumediene v. Bush

June 23, 2008Duke Law News

June 23, 2008 — The Supreme Court’s recent 5-4 ruling in Boumediene v. Bush extending a constitutional right of habeas review to foreign detainees at Guantanamo Bay is highly significant, a panel of Duke Law experts agreed during a June 17 discussion sponsored by the Center for International and Comparative Law.

“It says, for the first time, that the constitutional right of habeas corpus goes beyond the territory of the United States, and that had not been clear before,” said Curtis Bradley, Richard and Marcy Horvitz Professor of Law and professor of public policy studies. The Court emphasized in Boumediene, as it had in 2004 in Rasul v. Bush in considering whether Guantanamo detainees had statutory habeas rights, the unique — and comprehensive — control the United States exercises in the sovereign Cuban jurisdiction.

“It’s a very important decision,” said Bradley, who was joined in the discussion by Professors Madeline Morris, director of the Law School’s Guantanamo Defense Clinic which assisted with the petitioner’s brief in the case, and Scott Silliman, executive director Duke’s Center on Law, Ethics and National Security. “There are about 270 detainees at Guantanamo. This decision means that they now have the right to challenge the legitimacy of their detention in the federal district court in Washington and argue that it’s unconstitutional or unauthorized, or arguments along those lines.”

The Boumediene decision does not address other key substantive questions pertaining to the war on terror, Bradley noted, including among them “who is the enemy” and the legitimacy of the system of military commissions established to criminally try detainees. “[The justices] address nothing about the merits of anything the government is doing in the war on terrorism [but] simply insist that the courts participate more directly in that discussion,” he said. “That’s important, but more important issues lie ahead that have not yet been reached.”

Morris countered that the Court’s determination that all challenges to detention, whether from “plain detainees” being held without charge or those charged criminally for trial before military commissions established by statute, will be heard in federal court is, in itself, “a very good start.” To date, she said, all of the questions that have come to the high court relating to the Guantanamo detainees “so far haven’t gotten past, ‘who do you get heard by, and who has the authority to decide?’ Very happily, in my opinion, you get heard by a federal court, whether the executive claims a ‘law of war’ basis or a criminal law basis to detain a person.”

Unanswered questions
Agreeing with the Boumediene ruling in its result, Silliman said he finds the reasoning set out in Justice Anthony Kennedy’s majority opinion “troubling.” Rather than overruling the 1950 decision in Johnson v. Eisentrager, in which the Court found no statutory or constitutional right of access to federal courts for enemy combatants captured and imprisoned outside U.S jurisdiction, Kennedy cited practical and functional distinctions between the two cases, said Silliman.

“Because they are taking a functional approach as opposed to a legal or formalistic approach, there are a host of questions left unanswered,” he said. “We have no idea what the scope of habeas review is going to be in the district courts of the District of Columbia. I’m sure Professor Morris and her colleagues [in the Office of the Chief Defense Counsel, Office of Military Commissions, U.S. Department of Defense to which she served as chief counsel] are thinking of numerous ways to challenge, in the military commissions or in the federal courts, the military commissions — the federal trials — themselves.” Silliman said Chief Justice John Roberts made “good points” in dissent, when he stated that unanswered questions should have been remanded back down to the Court of Appeals for the D.C. Circuit.

Following Boumediene, two sets of issues are likely to come before federal courts, predicted Morris. The first, she noted, concern the “tension” itself. “Is there a war on? If there’s not war on, should we let everyone go? What’s a war? Is it an international armed conflict? If we don’t have to let everyone go, do we have to charge them criminally? Is there some other basis for detention?” she asked. “This is wide open, but finally it’s open.” Other questions, she said, will concern the Military Commissions Act of 2006, insofar as it provides for the criminal prosecution of detainees — a separate basis for detention, raising separate habeas issues.

Concerns over a “judicial takeover”
Bradley raised a separate concern over the majority’s finding that Congress acted unconstitutionally in its passage of the Military Commissions Act of 2006, which made the provisions of the Detainee Treatment Act of 2005 stripping all federal courts of jurisdiction entertain habeas review pertaining to Guantanamo detainees, retroactive to Sept. 11, 2001. “My own view about the Supreme Court, particularly in a closely divided case and particularly in a national security situation, is that they ought to be quite reluctant to take on both of the political branches at once — Congress and the president,” he commented. “Indeed that there’s reason why the Court, as an unelected body, should pay particularly high deference to the choices our elected representatives make.”

One of the problems with the war on terrorism, said Bradley, was that “it was run too much out of the executive branch,” without sufficient cooperation between the two political branches. “But when we start lacking deference to Congress, my worry is that we will run this out of the courts and the judicial branch has the least expertise of all three branches to make the difficult trade-offs between security and liberty and design of specific standards that we’ll need to deal with this novel, difficult and ongoing conflict.

“While that’s not all in this decision, I worry that it signals a judicial takeover, and if that’s the case, we could have problems in the future,” said Bradley.